Injured workers in Nebraska can be eligible for retraining or vocational rehabilitation (VR) benefits. Policy makers and business leaders in Nebraska bemoan a shortage of skilled workers, yet only 85 injured workers in Nebraska had a VR plan approved last year according to the latest report. This is a small percent of overall claims.
What explains this small number? I believe that for an injured worker in Nebraska to get vocational rehabilitation almost everything has to go favorably in their case. Even if their case goes favorably, they may not be a good candidate for vocational rehabilitation. Assuming they can meet the first and second hurdles, there are some procedural roadblocks in place.
Here are at least six reasons why I think relatively few vocational rehabilitation plans get approved by the Nebraska Workers’ Compensation Court.
1) Injured workers would rather just settle case or have good reason to settle — In order to receive VR, an employee needs to show they cannot perform suitable employment which they were qualified for before the injury. This usually means the employee has a serious injury which often involves a surgery and lengthy medical treatment. Many employees just want to be done their case and are willing to forgo vocational rehabilitation. In many cases there are questions about whether an injury is covered by workers’ compensation or whether the injury was caused by work. In those cases an employee may have tens of thousands dollars in medical bills that the employee could be responsible for if the case goes to trial and the worker receives an unfavorable decision.
2) Not every severely injured worker is a good candidate for vocational rehabilitation— In order to receive vocational rehabilitation a worker must show that they could benefit from retraining. A worker who is at or near retirement age wouldn’t reasonably expect to complete a four-year retaining program to start a new career. Some employees may not have the ability to retrain.
3) Employers are going to contest VR — Workers are paid temporary total disability benefits by their during their training program. Workers eligible for retaining programs also tend to be higher wage employees. An employee in a retraining program can cost an employer tens and thousands of dollars, so employers have incentive to fight long retraining programs.
4) Termination of the employee leads employer to dispute entitlement to VR — Under the law the ability to get a VR plan requires that employee is not able work at a job at their employer. If an employee who is working at the employer where they were injured post-injury gets fired, the employer usually disputes VR because they will argue they were accommodating the injury until the employee was fired for cause or quit without cause. This puts the workers’ compensation court in a tough spot because the court lacks the jurisdiction to decide a wrongful termination case. There isn’t clear case law on what standards to apply in a case where a termination or quit justifies denial of VR.
If there some evidence of an unlawful motivation in a termination, some employers are eager to settle the workers’ comp. and employment law case on a global basis. A good settlement offer that accounts for the questionable termination often gives employees a reason to forgo VR.
5) Not enough medical evidence — Sometimes an employee is hurt worse than medical records indicate. Sometimes this is because of the influence of outside nurse case managers who work for insurance companies. Self-insured employers often employ in-house case managers who are particularly aggressive in managing medical care to the advantage of employers.
In some circumstances, an employee can testify to the extent of their injuries. But this requires that an employee takes their case to trial. This doesn’t happen if an employee accepts a settlement. But even though an employee can testify about their disability, a judge doesn’t have to accept that testimony.
6. Procedural hurdles — In order for an employee to get VR, that plan must be approved by the vocational rehabilitation section of the court. In VR plans involving schooling, since the state is paying tuition, the state is allowed to contest the approval of plans.
Other hurdles include some customs that don’t have much support in case law, statue or court rule. There is the custom that a VR plan can’t be developed until a worker reaches MMI. There is also a custom that the the results of an FCE test need to be endorsed by a doctor before they can be used by a vocational counselor. Both of these customs can delay the implementation of a plan by months. This delay can be particularly painful if employees are in the gap between when their temporary benefits ceased and their permanent disability benefits are waiting to be determined.
Not all doom and gloom on VR
Some clients do successfully complete VR. I know of some of my clients who have used settlement proceeds to pay for schooling. Changes in the law have allowed some workers to get a lot of the income replacement parts of their VR benefits through settlements. The state of Nebraska also offers vocational rehabilitation through the Department of Education. I have also had clients who been retrained through Trade Adjustment Assistance.
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